JUDGMENT
1. This is a defendants' appeal arising out of a suit for recovery of possession brought by the daughter's sons of Brij Behari claiming possession of Brij Behari's estate on the ground that his widow Mt. Sukhdei had accelerated the succession with the consent of the daughter Mt. Ram Kedari in favour of the present plaintiffs by means of a gift dated 13th June 1923 which related to the entire estate. The main defence to "the suit was two-fold. In the first place it was pleaded that Brij Behari was joint with the other defendants Beni Din Ram Autar and others and in the second place that the effect of an arbitration award of 7th June 1918 and the proceedings following thereupon was to prevent the plaintiffs from obtaining possession of the property during the lifetime of Mt. Sukhdei. The learned Subordinate Judge has decided both these points against the defendants.
2. The question of separation was a pure question of fact and the learned Subordinate Judge has written an excellent judgment dealing with the entire evidence in a clear manner. As we are agreeing with his view it is not disputed that Brij Behari's father Ishwar Din in his lifetime got portions of properties entered in the names of his four sons and his wife and on the death of one of the sons got his share divided among his surviving sons. It is immaterial to consider whether the division among the sons was absolutely equal or unequal. Indeed there is no clear proof of any inequality in the shares which were given to the sons, nor is it quite clear whether the entire property in the hands of Iswar Din ancestral. The fact is admitted that for about 40 years the names of these sons have stood recorded separately and that of Mt. Mathuri, widow of Iswar Din stood recorded separately against other properties.
3. The learned Subordinate Judge, has believed the evidence of the two witnesses Jagannath and Mahadeo Singh produced by the plaintiffs particularly that of Jagannath which was to the effect that the brothers separated from each other in the lifetime of Iswar Din under the said arrangement and got properties separately and lived and messed separately and carried on cultivation separately. There are a number of documents executed by the sons transferring properties standing in their names respectively which go to show that there were separate dealings. Out of those one document, viz.: a mortgage bond dated 12th February 1896 is particularly important inasmuch as it shows that two brothers borrowed money from another Brij Behari and mortgaged their own share in the property to him. This transaction shows dealings inter se which are not ordinarily expected in a joint family. It is further clear and indeed Beni Din defendant admits that the brothers have had separate houses and separate sir cultivation and separate cattle sheds. The explanations given by the defendants of these separate transactions were not convincing and have been rejected by the Court below. Thus the separation of the property from the lifetime of the father, separation in the cultivation separate residence, mess and dealings as well as transactions inter se are all clearly established by the evidence.
4. The arbitration award on which the defendants rely itself goes to show that on the death of Brij Behari, Beni Din and others acquiesced in the widows of Brij Behari taking over possession of the property standing in his name. Furthermore they allowed the widows to take a share in the inheritance left even by Mt. Mathuri which was said by them to have devolved on their husband. Having regard to all this evidence there can be no doubt that the presumption of jointness was completely rebutted and separation was complete.
5. The finding of the Court below must therefore be accepted.
6. The next question is whether the arbitration award of 7th June 1918 under which the two widows were allowed to remain in possession during their lifetime after the death of Brij Behari with the proviso that on the death of either of them three-fourths of the property would go to the brothers of Brij Behari and one-fourth to the daughter has the effect of preventing the plaintiffs from recovering possession of the property.
7. The learned advocate for the appellants argues that the two widows could under a compromise with the brothers of their deceased husband validly enter into an agreement by which each could prevent the other of the right of succession to the estate left by the co-widow and that such agreement would be binding on her during her own lifetime: vide Muhammad Hashmat Ali v. Kaniz Fatima [1915] 13 A.L.J. 110. He then argues that the surviving widow could not go behind her own agreement and on the analogy of the doctrine that a donor cannot derogate from his own property, he contends that Mt. Sukhdei was incompetent to surrender the estate in her own lifetime in favour of her daughter's sons by accelerating the succession. He relies on the case of Lachhmi Chand v. Lachho A.I.R. 1927 All. 258 and contends that the acceleration of the estate must be subject to the compromise previously arrived at by the widows. There might be some force in this contention, but it is unnecessary to decide this point because in this particular case it is not fully established that a valid and binding agreement for reference to arbitration was entered into by the widows.
8. The learned Subordinate Judge has recorded very clear findings and given cogent reasons for disbelieving the evidence that the two widows understood the transaction and realized their full legal effect. On the death of Brij Behari it is said that an agreement for reference to arbitration was prepared which bore the thumb-marks of the widows under which the matter in dispute between them and his brothers was referred to arbitration. This is not forthcoming and it is alleged that this has been burnt and destroyed. Although Lalji Sahan the scribe admits that he keeps copies of all documents which he scribes, no attempt was made to summon the copy from him We therefore do not know the contents of this alleged agreement. It is not clear from the documentary evidence that it really bore the thumb marks of the two widows, that is to say, that the two widows were parties to the agreement of reference. When we turn to the award we do not find any clear recital to the effect that the two widows had referred the matter in dispute to the arbitrators. The names of the brothers of their husband are mentioned but not their names. The learned advocate for the appellants suggests that their names are included in the general expression "and others." But this cannot be necessarily presumed.
9. It is not also quite clear whether the arbitrators had authority to decide the line of future succession. But assuming that the matter was referred to them it was a matter which was not in dispute directly between the widows on the one hand and their brothers-in-law on the other. According to the award the dispute was as to who shall be entitled to get the property left in the aforesaid villages after the death of the two Mussammats (p. 58), that is to say, the right to succeed to the Musammats after their death. An attempt was made to suggest that the daughter Mt. Ram Kedari was a party to these proceedings, but there being no satisfactory evidence to establish it the learned Subordinate Judge has rightly rejected that theory. Thus the arbitrators proceeded to determine the right of the daughter to succeed behind her back. There is no satisfactory evidence to show that the agreement of reference to arbitration was fully explained to the two ladies and they appreciated the legal consequences of the reference to arbitration. When the right of the widows to get their names entered and to enter into possession in their own lifetime was not in dispute, it is very doubtful whether there could have been any bona fide dispute which required a settlement the dispute relating merely to future succession. It is well settled that the arbitrators cannot by their award lay down a new rule of succession so as to alter the personal law. There may be circumstances under which a personal estoppel may arise but those circumstances are missing from this case where the widows were illiterate pardanashin ladies who apparently had no male or near relations to advise them. We are therefore not satisfied that the ladies understood the terms of reference to arbitration and understood the contents of the deed of agreement. The finding of the Court below on this point must also therefore be accepted.
10. It is worthy of note that so far as the body of the award is concerned there was no express recital that the widows would have no power of alienation. This restriction on their power only appears in the remark column of the list of properties attached to the plaint.
11. We are also satisfied that there is nothing in the subsequent proceedings which took place which would estop Mt. Sukhdei. A compromise was filed in the revenue Court the day after the award was delivered which bore two marks said to have been made by the two ladies. By this they were supposed to have accepted the award. The revenue Court ordered mutation of names in their favour. The order did not incorporate the provision of the award which was to regulate the line of succession after the death of either of them.
12. In 1921 one of the widows Mt. Sheo rani died. Applications were filed on behalf of Mt. Sukhdei and also Mt. Ram Kedari purporting to bear their thumb impressions. In these applications they prayed that the mutation of names should be effected in accordance with the panchnama. They were both written by petition-writers and were alleged to have been thumb-marked by the ladies. The revenue Court ordered that the entry of the names should take place in accordance with the panchnama and this order was verified by the two ladies who were identified by two witnesses as being Mt. Sukhdei and Mt. Ram Kedari. These applications, however, merely referred to the mutation of names for the purpose of entries in the revenue papers and cannot be taken to dispose of the title to the property. These compromises were applications to the revenue Court and were not registered documents. We do not see how they can stand absolutely in the way of the present plaintiffs who are the daughter's sons. We must accordingly hold that the arbitration award of 1918 though a registered document did not prevent Mt. Sukhdei from accelerating the estate with the consent of her next heir Mt. Ram Kedari in favour of her daughter's sons The surrender is of the entire estate left by her deceased husband and it has not been suggested before us that the acceleration is in any way defective.
13. We accordingly uphold the decree of the Court below and dismiss the appeal with costs.